Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Harvey Lee Pyne, a Nevada state prisoner, appeals pro se from the district court's order denying his motion for appointment of a guardian ad litem pursuant to Federal Rule of Civil Procedure 17(c).¹  We dismiss this appeal for lack of jurisdiction.

Generally, our appellate jurisdiction is limited to appeals from "final decisions of the district courts...." 28 U.S.C. § 1291. The Supreme Court, however, has recognized an exception for interlocutory "collateral" orders. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

To be appealable under the "collateral order" exception to the "final judgment" rule, an interlocutory order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430 (1986) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)); Weygandt v. Look, 718 F.2d 952, 953-54 (9th Cir. 1983).

Here, Pyne seeks to appeal from the district court's interlocutory order denying his motion for appointment of a guardian ad litem. We hold that the district court's order does not fall within the "narrow" collateral order exception. See Weygandt, 718 F.2d at 953.

First, the issue raised in the order has not been conclusively determined. The district court has the authority to appoint a guardian ad litem at any time during the proceedings. See Fed. R. Civ. P. 17(c); United States v. 30.6 Acres of Land, 795 F.2d 796, 805 (district court may appoint a guardian ad litem "if it should appear during the course of proceedings that a party may be suffering from a condition that materially affects his ability to represent himself"). Thus, the order is " 'inherently tentative' " and is outside the scope of the collateral order exception. See Weygandt, 718 F.2d at 953-54 (denial of appointment of counsel in habeas corpus action is not an appealable collateral order because the district court may "appoint counsel at any stage of the case if the interests of justice require") (quoting Coopers & Lybrand, 437 U.S. at 469 n. 11).

Second, the issues raised by the order do not appear to be "completely separate from the merits of the action." Id. at 953. After a hearing on Pyne's motion for a guardian ad litem, the district court found that Pyne was competent and was able to represent himself in the action. In his underlying action, Pyne contends that he is mentally handicapped and that his imprisonment violates various federal statutes governing the rights and treatment of the mentally handicapped. Given these circumstances, we cannot say that the issues raised by this order are completely separate from the issues raised by the merits of the action. See id. at 954 (" [a]n interlocutory order is not appealable if it involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action" (quotations omitted)).

Third, the district court's denial of appointment of a guardian ad litem is not unreviewable on appeal from the final judgment. See, e.g., Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1990) (reversing a district court's dismissal of an action because the district court failed to conduct a competency hearing despite substantial questions as to the pro se plaintiff's mental competency); 30.6 Acres, 795 F.2d at 804-06 (reversing a district court decision after a final judgment because the district court failed to consider whether a guardian ad litem should be appointed).

Thus, we hold that the district court's interlocutory order denying Pyne's motion for appointment of a guardian ad litem is not an appealable collateral order. Accordingly, this appeal is dismissed for lack of jurisdiction.

DISMISSED.